Forfeiture of Offence-related Property

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General Principles

Section 2 of the Code defines "offence-related property":

“offence-related property” means any property, within or outside Canada,

(a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed,
(b) that is used in any manner in connection with the commission of such an offence, or
(c) that is intended to be used for committing such an offence;

...


CCC

The origin of the property is not relevant to determine whether the property fits the definition. The issue is the relationship the property has with the index offence.[1]

Any reference to an "indictable offence" excludes those offences for which there prosecuted by way of summary conviction.[2]

  1. R v Trac, 2013 ONCA 246 (CanLII)
  2. s. 34(c) of the Interpretation Act

Forfeiture of Offence-related Property on Conviction

Section 490.1(1) permits the forfeiture of "offence-related property" on application of the crown:

Order of forfeiture of property on conviction
490.1 (1) Subject to sections 490.3 to 490.41, if a person is convicted of an indictable offence under this Act or the Corruption of Foreign Public Officials Act and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall

(a) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law; and
(b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by the member of the Queen’s Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law.

(1.1) [Repealed, 2001, c. 41, s. 130]
Property related to other offences
(2) Subject to sections 490.3 to 490.41, if the evidence does not establish to the satisfaction of the court that the indictable offence under this Act or the Corruption of Foreign Public Officials Act of which a person has been convicted was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that the property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.
Property outside Canada
(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
Appeal
(3) A person who has been convicted of an indictable offence under this Act or the Corruption of Foreign Public Officials Act, or the Attorney General, may appeal to the court of appeal from an order or a failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.
1997, c. 23, s. 15; 2001, c. 32, s. 30, c. 41, ss. 18, 130; 2007, c. 13, s. 8.


CCC

Under s. 290.1(2), for property to be forfeited, the court must be satisfied that the offence convicted was "committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that the property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property."

An application under s. 490.1 is not part of a sentencing hearing and so the normal rules of evidence apply, including the presumptive inadmissibility of hearsay evidence.[1]

The standard of proof is on the balance of probabilities. [2]

Property includes cash and real property.[3]

  1. Faulkner v R., 2007 NBCA 47 (CanLII)
  2. Faulkner, ibid., at para 13
  3. R v Trac, 2013 ONCA 246 (CanLII) at para 78

Forfeiture of Offence-related Property Under the Controlled Drugs and Substances Act

In Rem Forfeiture

Application for in rem forfeiture
490.2 (1) If an information has been laid in respect of an indictable offence under this Act or the Corruption of Foreign Public Officials Act, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2).
Order of forfeiture of property
(2) Subject to sections 490.3 to 490.41, the judge to whom an application is made under subsection (1) shall order that the property that is subject to the application be forfeited and disposed of in accordance with subsection (4) if the judge is satisfied

(a) beyond a reasonable doubt that the property is offence-related property;
(b) that proceedings in respect of an indictable offence under this Act or the Corruption of Foreign Public Officials Act in relation to the property were commenced; and
(c) that the accused charged with the offence has died or absconded.

...
1997, c. 23, s. 15; 2001, c. 32, s. 31; 2007, c. 13, s. 9.


CCC

The application can be made to a provincial court or superior court judge.[1]

  1. s. 490.2(5)

Considerations in Forfeiture of Dwelling-House

Where the matter sought to be forfeited is a dwelling-house, the court must take into consideration further factors:

490.41
...
Factors in relation to dwelling-house
(4) Where all or part of the property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) is a dwelling-house, when making a decision under subsection (3), the court shall also consider

(a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and
(b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.

2001, c. 32, s. 33; 2007, c. 13, s. 11.


CCC

Other Items

Vehicles

The vehicle used to transport drugs that were the subject of a CDSA conviction is offence-related property and so can be seized.[1]

  1. R v Kopp, 2011 MBPC 74 (CanLII)

Weapons

See Also